The British were insisting in Washington this week that no decision had been taken as yet to override unilaterally the provisions of the Northern Ireland protocol.
However, they certainly seemed to be preparing the ground for any such eventuality.
The British know overriding the protocol would be hugely controversial not just in Dublin and Brussels but also among some key players in the United States where the Good Friday Agreement is one of the few issues to have genuine bi-partisan support.
The accord is seen as representing a significant success story in US foreign policy and politicians on all sides want to support it.
While there had been much argument over the last year or so about article 16 of the protocol the focus seemed to be moving to another part of the text
Ahead of whatever decisions may be taken, there was a significant British political presence in Washington this week.
Two other British cabinet members and a former minister also had Washington engagements. The UK ministers for transport and defence had other things to deal with on their visits.
However, David Frost, the former UK negotiator in the talks with the EU, was speaking to the rightwing conservative Heritage Foundation on the topic of “Britain after Brexit” which gave him ample opportunity to set out his views on the protocol.
Burns’s argument appeared to be that t the protocol was being implemented in a manner by the EU that had not been anticipated. As a result it had lost the unionist community’s support and was now placing the Good Friday agreement at risk – the very accord that the Europeans and Americans stressed they wanted to uphold.
The regulations associated with the protocol were excessively “burdensome” and were adding to costs for business and individuals.
While there had been much argument over the last year or so about article 16 of the protocol – essentially the emergency brake on the deal which could be applied if it was leading to “serious economic, societal or environmental difficulties that are liable to persist, or to diversion of trade” – the focus seemed to be moving to another part of the text.
British sources were this week pointing to article 13(8) which they argued provided for the agreement to be renegotiated or replaced.
Burns told The Irish Times that the British government wanted a negotiated agreement with the EU.
He said flexibility was needed regarding how the protocol was implemented and that at present it did not command the unionist community’s confidence.
He said the British government wanted to see differences in the checks applied to goods from Britain that were destined to remain in Northern Ireland for sale and consumption, and those intended to travel onwards to the Republic and the EU single market.
“We think there is way to do that without having the same rigour of checks for goods for sale in Northern Ireland,” he said.
Burns said EU negotiators had said they had reached the limit of their mandate and the British authorities wanted to see if this could be broadened.
“If we reach a point where that is impossible then clearly we will have to take decisions and actions to protect peace, powersharing and the institutions of the Good Friday agreement, but we are not at that point yet,” he said.
Burns did the rounds on Capitol Hill and met some of the main players.
However, in some cases he had to make do with talking to the political staff of politicians rather than the politicians themselves.
And from the outset there was a backlash from several Irish American political figures.
On Tuesday, congressman Bill Keating, chairman of the foreign affairs subcommittee on Europe, and congressman Brendan Boyle, co-chair of the congressional EU Caucus in the House of Representatives sent a strongly worded letter to the British foreign secretary Liz Truss.
They warned that any unilateral move by the British government to override parts of the Northern Ireland protocol would “ squarely threaten the Good Friday agreement”.
They also suggested that the Biden administration in the US was on the verge of appointing a special envoy to Northern Ireland.
The congressmen said the “worst outcome of Brexit would be one that led to violence and upheaval in Northern Ireland”.
They urged Ms Truss and the British government to “uphold your end of the deal and act in good faith, within the parameters of international law, to maintain peace and stability in Northern Ireland”.
‘I do believe the solution is within our reach and I desperately want [the British] to go back and negotiate in earnest’
The White House on Wednesday also signalled that it did not want to see unilateral action by the British on the protocol.
The Biden administration urged the British government and the European Union to continue talking about resolving difficulties over the Northern Ireland protocol.
The White House said the Biden administration recognised that there had been “challenges” over the implementation of the Northern Ireland Protocol.
“The best path forward is a pragmatic one that requires courage, cooperation, and leadership. We urge the parties to continue engaging in dialogue to resolve differences and bring negotiations to a successful conclusion.”
“We underscore our continued support for a secure and prosperous Northern Ireland in which all communities have a voice and enjoy the gains of the hard-won peace,” a White House spokesman said.
Earlier in the week the president had, out of apparently nowhere at an engagement, brought up publicly his admiration for the European Union. He said it was an “economic powerhouse “, a “global force for peace” and “something that is good for everyone”.
Enter Frost who told the Heritage Foundation event on Thursday that talks had effectively reached the end of the road with the EU and now the UK government had to act.
He contended the Biden the administration did not fully grasp Northern Ireland and the impact of the protocol.
He suggested that American politicians should stay out of Britain’s affairs in relation to Northern Ireland.
“I am not convinced the niceties of Northern Ireland are well understood. I get slightly frustrated when we are told by a third party – albeit a very important one in this context – how to manage these issues. It is our country that had to face terrorism, so we don’t need lectures from others about the peace process and the Good Friday agreement.”
The comments did not go down well on Capitol Hill or in Irish America.
One political figure said Frost was a private citizen and could say what he liked. However, if his views were reflected in the attitude of the British government then they would be well to remember that sovereignty worked both ways and any British proposals for a trade deal would be “dead on arrival”.
Frost’s comments emerged ahead of a meeting between Burns and a group of academics, former diplomats, Irish American organisations and others who had been involved in Irish/American issues down the years.
Sources familiar with the meeting said there had been anger among a number present at Frost’s attitude towards Biden.
Sources said the British side appeared surprised that the level of knowledge in Washington about the workings of the protocol. Some maintained the British arguments were “unconvincing” and believed the whole issue was based around political power plays under way within Westminster rather than in Northern Ireland.
The Irish side were also out and about in Washington on the protocol issue in recent days.
Irish representatives briefed the state department, the national security coun